Senate Dems Play Football With Judges

Here we go again. Just in time for the midterm elections, judicial confirmation battles are once again heating up in the United States Senate, with Senate Democrats threatening to filibuster some of President Bush’s judicial nominees.

This time the two nominees in question are Terrence Boyle and Brett Kavanaugh, but the story is really the same as before: the President has nominated qualified candidates who are disliked by liberal special interest groups, so Senate Democrats are threatening to filibuster these nominees.

The case of Terrence Boyle is typical. Though Judge Boyle was nominated in May 2001, and approved by the Senate Judiciary Committee last June, he is still waiting for a vote from the full Senate.

Last Wednesday Senate Minority Leader Harry Reid said, "I can’t imagine how President Bush could bring him to the Senate for confirmation." He added that if Senate Republicans tried there would be a filibuster.

Democrats are using a recent online article as ammunition. The article questions whether Judge Boyle had a conflict of interest that would have impaired his rulings as a judge. Judge Boyle apparently held stock in General Electric at the same time that he ruled in a case in which GE was a party.

The White House remains solidly behind their nominee. White House spokeswoman Dana Perino said, "Judge Boyle has never intentionally participated in any matter in which he should have recused himself, nor has there been any suggestion that Judge Boyle knowingly overlooked any conflict or used his office for private gain."

If a group of senators believe that Judge Boyle has acted unethically, they should make their case against him and cast their votes accordingly. The "advise and consent" role of the Senate demands exactly that. They should not, however, filibuster a qualified nominee whose nomination has been pending for five years, and who was already approved by the Senate Judiciary Committee nearly a year ago. Every judicial nominee deserves an up or down vote, and a minority group of senators should not be able to thwart that vote simply because they disagree with the possible outcome.

The other judicial nominee facing a possible filibuster is Brett Kavanaugh, who has been appointed by President Bush to sit on the Court of Appeals for the D.C. Circuit, widely seen as the most important federal circuit court. Mr. Kavanaugh was nominated in July of 2003, and had a hearing in April of 2004.

One would think that the Senate Judiciary Committee would now vote on whether to send him to the full Senate for an up or down vote, but Senate Democrats have demanded a second hearing, which will take place next week. It seems they would like to further interrogate Mr. Kavanaugh about his record as a White House aide. In reality, it appears that Senate Democrats are merely attempting to delay this Bush-appointed judge from filling a seat on a court they deem so important.

At the risk of sounding like a broken record, the Constitution is clear: the President nominates a judicial candidate to sit on a court, and the Senate advises and consents. That means that the Senate has the responsibility to take candidates into consideration, and to vote yes or no based on whether the candidate is or is not qualified. Senate Democrats, however, have repeatedly threatened to filibuster judicial nominees they find objectionable, rather than merely voting against them as the Constitution requires.

There can be no doubt but that President Bush ran for re-election on the issue of judicial nominees. When this country voted to give President Bush four more years, they voted to give him the privilege of putting men and women on the bench whom he deemed qualified, and for whom the Senate gave their approval.

Senators are certainly entitled to debate a nominee’s record, but there comes a time when the debating must stop and a vote must take place. Invoking a filibuster to thwart the Constitutional process merely because the likely outcome is deemed unfavorable is not the way judicial confirmations were designed to be handled.

The Constitution requires only that a majority of senators approve of a judicial nominee; and that requires an up or down vote before the full Senate. The Senate leadership should do whatever is necessary to ensure that the Constitutional process is respected, and that all of the President’s nominees receive the up-or-down vote to which they are entitled.

Mr. Connor is chairman of the Center for a Just Society in Washington, D.C., and a nationally recognized trial lawyer who represented Gov. Jeb Bush in the Terri Schiavo case. Connor was formerly president of the Family Research Council, chairman of the Board of CareNet, and vice chairman of Americans United for Life.